ConCourt explains dismissal of Zuma, MK Party bid against Ramaphosa decisions

The judgment, handed down on Friday by Justice Rammaka Mathopo on behalf of a unanimous bench, represents a significant setback for Zuma and his political allies, who accused the president of exceeding his constitutional authority.

At the heart of the case were Ramaphosa’s July 13 decisions, announced in the wake of explosive allegations by KwaZulu-Natal Police Commissioner Nhlanhla Mkhwanazi. 

During a press briefing, Mkhwanazi claimed that a sophisticated criminal syndicate had infiltrated law enforcement, intelligence structures, and even the judiciary, and directly implicated then-police minister Senzo Mchunu in interference with investigations. 

In response, the president placed Mchunu on leave of absence, appointed academic Professor Firoz Cachalia as Acting Minister of Police, and established a Judicial Commission of Inquiry chaired by former Acting Deputy Chief Justice Mbuyiseli Madlanga.

Zuma and the MK Party argued that all three moves were unconstitutional. 

They maintained that the president has no power to suspend or place a minister on leave, that Cachalia’s appointment was invalid since he was not a member of Parliament or Cabinet, and that asking a judge to preside over an inquiry probing allegations against the judiciary violated the doctrine of separation of powers. 

They insisted the decisions demonstrated political bias and a dangerous concentration of executive power.

But the Constitutional Court rejected these claims, finding that the applicants had failed to establish a constitutional basis for bypassing the ordinary court process.

Justice Mothopo explained that the case did not fall within the court’s exclusive jurisdiction under Section 167(4)(e) of the Constitution, which is narrowly confined to instances where the president has failed to fulfil a constitutional obligation. 

Instead, he said, the applicants were essentially challenging how the president exercised his discretionary powers.

"What emerges from a careful reading of the founding papers is a case that challenges the lawfulness of specific decisions that a President has made."

"What is notably absent, however, is anything more than a broad allegation that a President has failed to comply with specific constitutional obligations."

He further emphasised that provisions such as Section 84(2) of the Constitution confer discretionary powers on the president, and that disputes over whether such powers were exercised irrationally or improperly fall within the review jurisdiction of the High Court, not the Constitutional Court.

The bench also refused to grant direct access under Section 167(6)(a), stressing that such access is reserved for exceptional cases where the interests of justice demand immediate intervention. 

Mothopo noted that there was no urgency that required the Constitutional Court to sit as a court of first and last instance, especially since the High Court could deal with the matter and, if necessary, issue interim relief. 

"The more important and complex the issue in a case, the more compelling the need for this Court to be assisted by the views of another Court."

While the applicants’ arguments were unsuccessful, the Court did not punish Zuma and the MK Party with a costs order. 

Mothopo noted that although their case was weak, the jurisdictional questions raised were not entirely frivolous or hopeless. As a result, each party will bear its own costs.

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